AMSA Legal Perspectives June 2002

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“This Constitution and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.”

U.S. Constitution, Article VI, Clause 2

Our nation’s founders intended federal law, when enacted, to be “the law of the land.” However, this intent did not mean that federal law always would be the only law in the land. This is certainly true of environmental law. Unless “preempted” by federal environmental statutes and regulations, states are free to enact their own environmental laws and regulations – which can be more stringent than the federal approach. Similarly, unless preempted by federal or their state’s environmental laws, cities, counties, towns, and townships across the nation may develop their own ordinances and other requirements to manage local environmental practices.

This issue of Legal Perspectives reviews the application of preemption arguments to biosolids land application issues. As land application continues to be scrutinized by the scientific, regulatory, and activist communities, some localities have enacted or are considering ordinances restricting or conditioning biosolids land application. Depending on their content, these ordinances can severely limit, and even completely ban, a municipality’s land application opportunities. The volatile local politics often underlying such ordinances heighten uncertainty for publicly owned treatment works (POTWs) seeking reliable residuals management options, and can lead to increased biosolids handling costs.

Many legal theories can be used to challenge restrictive local biosolids land application ordinances. For example, if local (or state) regulation of an environmental practice such as land application burdens interstate commerce, a challenge can be brought under the Commerce Clause of the Constitution. See, e.g., Waste Management Holdings, Inc. v. Gilmore, 252 F.3d 316 (4^th Cir. 2001) (holding that certain state restrictions on solid waste management violated the Commerce Clause). Recently however, the argument that federal or state law preempts a locality’s authority to act restrictively in the land application arena is showing new signs of being particularly useful to POTWs facing limiting local ordinances.

This Legal Perspectives issue overviews preemption theory, discusses recent land application preemption cases, notes cases both finding and rejecting preemption by the federal Clean Water Act (CWA) in the biosolids arena, and discusses the future of this discrete area of legal theory.

Types of Preemption
There are three general ways by which federal law is found to preempt state law. The same approach typically is used to assess whether state law preempts local ordinances.

The three forms of preemption can, and often do, overlap with one another.

• Express preemption – express preemption occurs when a federal statute (or state law) explicitly states that lower political authorities have no authority to legislate on the subject;

• Field preemption – field preemption results when the federal law (or state statute) so thoroughly occupies a particular legislative field that it is reasonable to infer that Congress (or the state legislature) left no room for the state (or local government) to supplement with additional regulations in the area; and

• Conflict preemption – conflict preemption arises when the state law (or local ordinance) make it impossible to comply both with it and the federal (or state law), or when a state law (or local ordinance) functions as an obstacle to accomplishing or executing the objectives of Congress (or the state legislature). When it comes to conflict preemption, courts strive to interpret a local ordinance in harmony with state law.

State Law Likely To Preempt Restrictive Local Biosolids Ordinances
In states that have made clear that land application is allowed, both federal and state courts are using preemption theory fairly consistently to override restrictive local biosolids ordinances. For example, earlier this year a Pennsylvania state appellate court found that a township’s local biosolids ordinance was preempted by the state’s Solid Waste Management Act. Hydropress Environmental Services v. Township of Upper Mount Bethel, 796 A.2d 440 (Pa. Commw. Ct., Mar. 7, 2002). More recently, a Pennsylvania federal court indicated in an early phase of a case that the state’s Nutrient Management or Solid Waste Management Acts may preempt a restrictive biosolids land application ordinance. Synagro v. Rush Township, 2002 WL 1290202 (M.D. Pa., June 7, 2002) (denying in part the Township’s motion to dismiss).

In early 2001, Virginia’s Supreme Court found that a county ordinance prohibiting land application was preempted by the Commonwealth’s laws and regulations allowing biosolids land application with proper permits. Blanton v. Amelia County, 540 S.E.2d 869 (Va. 2001). Later that year, a Virginia federal district court granted a preliminary injunction against a county biosolids ordinance, based in part on a finding of possible state law preemption. Synagro-WWT, Inc. v. Louisa County, 2001 WL 868638 (W.D. Va. July 17, 2001).

Maryland’s highest court also has reviewed preemption in the biosolids area. This court found on two separate occasions that ordinances restricting biosolids activities are preempted by comprehensive state legislation regulating sewage sludge utilization. See Soaring Vista Properties, Inc. v. Board of County Comm’rs, Queen Anne’s County, 741 A.2d 1110 (Md. 1998); Talbot County v. Skipper, 620 A.2d 880 (Md. 1993).

This consistent precedent demonstrates that where AMSA members face restrictive local biosolids ordinances, state law preemption arguments can be successful. The key to a persuasive preemption argument is being able to cite to a comprehensive state legal and regulatory land application regime.

Federal CWA Less Likely to Preempt State and Local Biosolids Activities
As shown above, arguments that state laws and regulations preempt local biosolids ordinances are generally successful. However, it is more difficult to argue that the federal CWA preempts state water legislation. As a fundamental matter, Congress did not intend the CWA to preempt state water law. This intent is evident in the many CWA provisions specifically designed to be carried out by the states, such as the National Pollutant Discharge Elimination System permit program, state water quality standards, and antidegradation.

However, when it comes to biosolids land application, Congress took a very comprehensive approach, including detailed statutory language that empowers the U.S. Environmental Protection Agency (EPA) to identify and regulate pollutants in sewage sludge. As a result, courts looking at CWA preemption of state or local biosolids activities have reached varied results.

For example, the same Virginia federal court that in 2001 found possible state law preemption of a county biosolids ordinance, found in 1995 that another county’s biosolids ordinance was not preempted by the CWA. Welch v. Board of Supervisors, Rappahannock County, 888 F. Supp. 753 (W.D. Va. 1995). In contrast, last year a Florida federal court granted a preliminary injunction based on its finding that a county biosolids ordinance likely was preempted by both state law and the CWA. Azurix v. DeSoto County, No. 2-01-cv-428-FTM-29DNF (M.D. Fla. Sept. 7, 2001).

Thus, while a finding of CWA preemption of all state or local biosolids activity is unlikely, uncharted legal ground in this area remains – particularly where the state’s regulations do not build on the federal 40 C.F.R. Part 503 regulations, but instead amount to a ban on the beneficial use of biosolids.

Looking Ahead
Last week’s release of the National Research Council’s Report on land application of sewage sludge, Biosolids Applied to Land: Advancing Standards and Practices, demonstrates that biosolids land application will remain in the public’s mind for some time to come (see the Report at http://books.nap.edu/books/0309084865/html/index.html). As long as land application is scrutinized, local governments will be pressured to take varying degrees of action to address the practice – some of which can adversely affect a POTW’s land application options. It will be important for POTWs in such communities to keep state law, and perhaps federal CWA, preemption arguments in mind as powerful tools to counter restrictive local anti-biosolids actions.

© 2002 Association of Metropolitan Sewerage Agencies

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Legal Perspectives is a monthly publication of the Association of Metropolitan Sewerage Agencies (AMSA).

Founded in 1970, AMSA represents the interests of over 270 of the nation's POTWs. AMSA members serve the majority of the sewered population in the United States and collectively treat and reclaim over 18 billion gallons of wastewater everyday.

Thanks to James B. Slaughter, Esq.,
Beveridge & Diamond, P.C., Washington, D.C.,
for his input to this issue.

AMSA welcomes comments on Legal Perspectives. Please contact Alexandra Dapolito Dunn, General Counsel, at adunn@amsacleanwater.org or 202/533-1803.